A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Proposes an evaluative theory of interpretation for the European Convention on Human Rights

Locates interpretive values within the history of the ECHR by surveying and analyzing all the relevant judgments of the European Court of Human Rights

A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Description

Recent developments have raised important jurisprudential issues in relation to the interpretation of the European Convention on Human Rights which point to the relationship between the two foundational principles of a supranational human rights system: state sovereignty on one hand and the universality of human rights on the other. This book analyzes the idea that creative interpretation and choice in interpretation amounts, by default, to illegitimate discretion and is used to wave the flag of judicial self-restraint. It balances this against the inconsistency or lack of clarity in the methods used by the Court, most notably the margin of appreciation doctrine, and looks at the criticism often leveled at the Court that its use of the doctrine masks the real basis
for its decisions.

The cases that have been coming before the European Court of Human Rights in recent years pose serious interpretive challenges. Does the right to life under art. 2 ECHR include the right to terminate one's life? Does the right to private life under article 8 ECHR include the right to sleep at night free from airplane noise? Does the right to property under art. 1 Protocol 1 ECHR entitle the former King of Greece to claim compensation for the expropriation of royal property, following a referendum? Do homosexual couples have a right to adopt under art. 8 ECHR? This book argues that how law should be interpreted, and what legal rights individuals have, are important questions of political morality that are both capable, and in need of, principled justification.

A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Table of Contents

1. Human Rights, Legality, and the ECHRIntroductionBackground to and a Very Brief History of Human RightsNo One-Size-Fots-All Theory of Human RightsHuman Rights as Conditions of LegitimacyHuman Rights, Legal Rights, and InterpretivismConclusion2. Autonomous Concepts, Conventionalism, and Judicial DiscretionIntroductionThe Emergence of Autonomous ConceptsGood-Faith Violations of the ECHRA More Recent Example of an Autonomous ConceptAutonomous Concepts and Judicial DiscretionNeed for Harmonization and Uniform Application?Autonomous Concepts as DisagreementDoes Disagreement Entail Judicial DiscretionPossible Choices3. The Semantic Sting and the ECHRIntentionalism, Textualism, and Evolutive InterpretationIntroductionOriginalism in Constitutional LawGolder v UK VCLT and the Case of Unenumerated RightsAfter Golder: the ECHR as a Living InstrumentThe Failures of OriginalismThe Object and Purpose of the ECHREvolutive Interpretation: Truth Not Current Consensus4. Two Concepts of the Margin of AppreciationIntroductionTheories of International Human Rights LawThe Substantive Concept of the Margin of AppreciationThe Structural Concept of the Margin of AppreciationConsensus and Public Morals5. Liberal Principles of Human Rights InterpretationIntroductionRights, Interests, and ReasonsLiberal Egalitarian Theories of
Rights: Rawls and DworkinLiberal Egalitarian Principples for the Interpretation of the Limitation Clauses6. Public Morals, Consensus, and Rights Inflation: A CritqueIntroductionPublic Morals and the Moralistic Preferences of the MajorityConsensus, Piecemeal Evolution, and LegalityRights Inflation: Hatton and the Right to Sleep Well

A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Author Information

George Letsas is Lecturer in Law at University College London

A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Reviews and Awards

"Constituting a profound reflection on the Courts interpreting role, the book [...] both enriches legal theory and provides stimulating reading material for everyone dedicated to the cause of human rights." --From the foreword by Judge Spielmann

"Dr Letsas's book is as challenging as any theoretical writing about the European Convention on Human Rights in recent years. It starts from a very precise understanding about the nature of human rights and about the role of courts charged with the interpretation of the documents which transform the political idea of human rights into the regime of law. Not every Convention lawyer will find his positions utterly convincing but they all will benefit from absorbing and responding to the thesis he puts forward. This is an attractive and efficiently-written book which straddles the line between theory and practice with some confidence." --Colin Warbrick, Birmingham Law School

"A powerfully argued, compelling and strikingly original contribution which deserves a central place in contemporary debates about the Convention and human rights in Europe... The author is... to be congratulated not only for producing such a ground-breaking and erudite study, but for opening up a potentially rich and fruitful research agenda to which he and others can contribute for a long time to come." --Steven Greer, International Journal on Minority and Group Rights 16, 2009